[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Rules and Regulations]
[Pages 58059-58061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23586]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 622 and 697

[Docket No. 080221249-81231-02]
RIN 0648-AT13


Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 
Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
Atlantic Coast Red Drum Fishery off the Atlantic States; Transfer of 
Management Authority

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to repeal the Atlantic Coast Red 
Drum Fishery Management Plan (FMP) and to transfer the management 
authority of Atlantic red drum in the exclusive economic zone (EEZ) 
from the South Atlantic Fishery Management Council (South Atlantic 
Council), in cooperation with the Mid-Atlantic Fishery Management 
Council (Mid-Atlantic Council), under the Magnuson-Stevens Conservation 
and Management Act (Magnuson-Stevens Act) to the Atlantic States Marine 
Fisheries Commission (Commission) under the Atlantic Coastal Fisheries 
Cooperative Management Act (Atlantic Coastal Act), as requested by the 
Councils and the Commission. The intent of this final rule is to 
enhance the effectiveness and efficiency of managing Atlantic red drum.

DATES: This final rule is effective November 5, 2008.

ADDRESSES: Copies of the environmental assessment (EA), which describes 
the impacts of the transfer of management authority, may be obtained 
from Kate Michie, NMFS, Southeast Regional Office, 263 13th Avenue 
South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-
5308.

FOR FURTHER INFORMATION CONTACT: Kate Michie, telephone: 727-824-5305.

SUPPLEMENTARY INFORMATION: The Atlantic red drum fishery off the South 
Atlantic and Mid-Atlantic coastal states is currently managed under two 
separate FMPs. Atlantic red drum located in the EEZ are managed under 
the Atlantic Coast Red Drum FMP prepared by the South Atlantic Council, 
in cooperation with the Mid-Atlantic Council (Council FMP), and 
implemented under the authority of the Magnuson-Stevens Act by 
regulations at 50 CFR part 622. The Council FMP prohibits harvest or 
possession of red drum in the South Atlantic and Mid-Atlantic EEZ. 
Atlantic red drum located in state waters are managed under the 
Interstate Fishery Management Plan (ISFMP) for Red Drum by the Atlantic 
coast states (New Jersey through Florida) and the Commission. This 
final rule repeals the Council FMP and implementing regulations issued 
under the Magnuson-Stevens Act and simultaneously replaces them with 
substantially identical regulations under the Atlantic Coastal Act. The 
Atlantic Coastal Act allows the Federal government to better coordinate 
its management practices with the states via the Commission process. 
The repeal of the Council FMP would occur at the same time as this rule 
is implemented.
    On April 3, 2008, NMFS published a proposed rule for the transfer 
of management authority of Atlantic red drum and requested public 
comment (73 FR 18253). The rationale for this action, including the 
statute giving authority to the Commission to manage Atlantic red drum 
in the EEZ, the purpose and need for transfer of management authority, 
and the benefits of this transfer are included in the preamble to the 
proposed rule and are not repeated here.

Comments and Responses

    The following is a summary of the comments NMFS received on the 
proposed rule and NMFS' responses. Three comments were received on this 
action. One comment was in favor of the transfer of management 
authority, one comment was opposed to the transfer of authority, and 
one comment was in favor of the transfer of authority but did not agree 
that regulations under the Atlantic Coastal Act are comparable to the 
current Magnuson-Stevens Act regulations.
    Comment 1: The first commenter stated the transfer of authority 
will result in more efficient and effective management for Atlantic red 
drum.
    Response: The purpose of this action is to manage Atlantic red drum 
under one FMP rather than two, thus minimizing management costs and 
eliminating unnecessary duplication of management efforts. This 
transfer of management authority furthers Magnuson-Stevens Act national 
standard 7, which states ``Conservation and management measures shall, 
where practicable, minimize costs and avoid unnecessary duplication.''
    Comment 2: The second commenter stated the changes being proposed 
are anti-environmental in nature, and NMFS in particular is biased 
toward ``fish profiteers.''
    Response: This rule will not change existing restrictions 
prohibiting the harvest or possession of red drum in the EEZ. NMFS and 
the U.S. Coast Guard will continue to enforce those prohibitions. 
Repealing the Council FMP under the Magnuson-Stevens Act and 
simultaneously implementing comparable regulations under the Commission 
FMP under the Atlantic Coastal Act, will provide for a more efficient 
and timely rebuilding of the Atlantic red drum resource.
    Comment 3: One commenter stated the regulations under the Atlantic 
Coastal Act intended to replace those under the Magnuson-Stevens Act 
are

[[Page 58060]]

not comparable, and the EA does not acknowledge some of the essential 
fish habitat (EFH) designated for red drum will be eliminated, nor does 
it mention the loss of habitat areas of particular concern (HAPC).
    Response: NMFS does not believe that adoption of this rule will 
result in an appreciable loss of habitat protection for red drum.
    As a preliminary matter, red drum EFH, including habitat areas of 
particular concern, substantially overlaps the EFH of other species. 
Accordingly, even if red drum EFH designations are necessarily 
withdrawn in the transfer, NMFS would still likely recommend the same 
protective measures through its EFH consultations on other species. In 
other words, although red drum habitat protections would be incidental 
to EFH consultations on other species, red drum habitat would 
nevertheless still be protected. For example, the South Atlantic 
Coastal Migratory Pelagics FMP (CMP FMP) includes EFH areas that 
overlap areas previously designated as EFH for red drum, namely, 
barrier island ocean-side waters from the surf to the shelf break zone, 
all coastal inlets, and all state-designated nursery habitats of 
particular importance to coastal migratory pelagics. Under the CMP FMP 
the surf zone is not referred to as a ``high-salinity'' surf zone as it 
is in the red drum EFH description; however, the same meaning for each 
is inferred. Additionally, the South Atlantic Shrimp FMP (Shrimp FMP) 
does use the term ``tidal freshwater'' in its designation of EFH for 
penaeid shrimp. The Shrimp FMP includes inshore nursery areas in its 
designation of EFH for penaeid shrimp and defines this habitat as tidal 
freshwater, estuarine, and marine emergent wetlands (e.g., intertidal 
marshes); tidal palustrine forested areas; mangroves, tidal freshwater, 
estuarine, and submerged aquatic vegetation (SAV) (e.g., seagrass); and 
subtidal and intertidal non-vegetated flats. This designation of EFH 
for penaeid shrimp applies from North Carolina through the Florida 
Keys.
    Further, to the extent that protection is lost under the Magnuson-
Stevens Act in the transfer, NMFS believes that such loss is mitigated 
by comparable protections that would remain under other statutes. 
Specifically, the Fish and Wildlife Coordination Act, similar to the 
Magnuson-Stevens Act, requires Federal agencies to first consult with 
NMFS before taking an action that might impact NMFS trust resources. 
The Fish and Wildlife Coordination Act requires that the Federal agency 
``...shall consult with...the head of the agency exercising 
administration over the wildlife resources...with a view to the 
conservation of wildlife resources by preventing loss of and damage to 
such resources...'' Further, the Fish and Wildlife Coordination Act 
allows the Secretary to make recommendations to the Federal agency on 
alternative ``...means and measures that should be adopted to prevent 
the loss of or damage to such wildlife resources...'' (16 U.S.C. 661-
667e). Accordingly, although EFH is a technical term unique to the 
Magnuson-Stevens Act and EFH consultation is a process reserved to 
species managed under the Magnuson-Stevens Act, it does not necessarily 
follow that comparable habitat protection would be altogether lost if 
red drum were managed under an alternative statute. Federal agencies 
would still be required to consult with NMFS on the potential impacts 
of their actions to red drum habitat, but simply under a different 
statute.
    Comment 4: One of the above commenters also stated that the EA does 
not discuss Executive Order (E.O.) 13449, (72 FR 60531, October 24, 
2007), regarding the protection of striped bass and red drum, and the 
rule would not establish consistent EFH consultation requirements 
between red drum stocks of the Gulf of Mexico and Atlantic.
    Response: The commenter is concerned this rule will establish 
inconsistent regulations between the red drum stocks of the Gulf of 
Mexico and the Atlantic. Gulf of Mexico red drum stocks are already 
managed independently of the Atlantic red drum stocks. The ability of 
the NMFS to consult and provide consistent recommendations for the 
conservation and preservation of habitats utilized by red drum under 
the Fish and Wildlife Coordination Act will not change. Additionally, 
because NMFS will continue to consult and provide conservation 
recommendations for EFH of all other Council-managed species, the 
ability to consistently protect and conserve fishery habitats, 
including all habitats utilized by red drum, will not be significantly 
changed.
    NMFS understands this rule to be consistent with the spirit and 
intent of E.O. 13449, because comparable EFH protections for Atlantic 
red drum will be maintained under previously noted FMPs for Council-
managed species, and comparable fishery management regulations under 
the Atlantic Coastal Act will take the place of current regulations 
under the Magnuson-Stevens Act, and because comparable habitat 
consultation will occur under the Fish and Wildlife Coordination Act. 
Furthermore, the Atlantic Coastal Act clearly includes habitat 
conservation among its intended goals with regards to state-federal 
cooperation by stating: ``The Secretary in cooperation with the 
Secretary of the Interior shall develop and implement a program to 
support the interstate fishery management efforts of the Commission. 
The program shall include activities to support and enhance State 
cooperation in collection, management, and analysis of fishery data; 
law enforcement, habitat conservation; fishery research, including 
biological and socioeconomic research; and fishery management 
planning'' (16 U.S.C. 5103).

Classification

    The Administrator, Southeast Region, NMFS, determined that the 
transfer of management authority is necessary for the conservation and 
management of the Atlantic red drum fishery and that it is consistent 
with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required, and none was prepared.

List of Subjects

50 CFR Part 622
    Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping 
requirements, Virgin Islands.
50 CFR Part 697
    Fisheries, Fishing.

    Dated: September 30, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 622 and 697, are 
amended as follows:

PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC

0
1. The authority citation for part 622 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.


[[Page 58061]]




Sec.  622.1  [Amended]

0
2. In Sec.  622.1, Table 1, the entries for ``Atlantic Coast Red Drum 
FMP'' are removed.


Sec.  622.32  [Amended]

0
3. In Sec.  622.32, remove paragraph (b)(3), and redesignate paragraph 
(b)(4) as paragraph (b)(3); remove newly redesignated paragraph 
(b)(3)(iii), and redesignate newly redesignated paragraphs (b)(3)(iv) 
through (vi) as paragraphs (b)(3)(iii) through (v).


Sec.  622.48  [Amended]

0
4. In Sec.  622.48, remove paragraph (k), and redesignate paragraphs 
(l) and (m) as paragraphs (k) and (l), respectively.

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

0
5. The authority citation for part 697 continues to read as follows:

    Authority: 16 U.S.C. 5101 et seq.

0
6. In Sec.  697.2, the definition of ``Atlantic red drum'' is added and 
the definition of ``Regional Administrator'' is revised, in 
alphabetical order, to read as follows:


Sec.  697.2  Definitions.

* * * * *
    Atlantic red drum, also called redfish, means Sciaenops ocellatus, 
or a part thereof, found in the waters of the Atlantic Ocean off the 
Atlantic coastal states, to the outer boundary of the EEZ, as specified 
in Sec.  600.10 of this chapter, from the boundary of the United States 
and Canada, to the boundary between the South Atlantic Fishery 
Management Council and the Gulf of Mexico Fishery Management Council, 
as specified in Sec.  600.105(c) of this chapter.
* * * * *
    Regional Administrator, means Regional Administrator, Northeast 
Region, NMFS, or Regional Administrator, Southeast Region, NMFS, 
whichever has the applicable jurisdiction, or a respective designee.
* * * * *

0
7. In Sec.  697.7, paragraph (f) is added to read as follows:


Sec.  697.7  Prohibitions.

* * * * *
    (f) Atlantic red drum fishery. In addition to the prohibitions set 
forth in Sec.  600.725 of this chapter, it is unlawful for any person 
to do any of the following:
    (1) Harvest or possess Atlantic red drum in the EEZ south of a line 
extending in a direction of 115[deg] from true north commencing at a 
point at 40[deg]29.6' N. lat., 73[deg]54.1' W. long., such point being 
the intersection of the New Jersey/New York boundary with the 3-nm line 
denoting the seaward limit of state waters, and north of the 
demarcation line between the South Atlantic Fishery Management Council 
and the Gulf of Mexico Fishery Management Council described in Sec.  
600.105(c) of this chapter.
    (2) Fail to release immediately without further harm, all Atlantic 
red drum caught in the EEZ area described in paragraph (f)(1) of this 
section.

0
8. In Sec.  697.22, the introductory text and paragraph (a)(1) are 
revised to read as follows:


Sec.  697.22  Exempted fishing.

    The Regional Administrator or Director may exempt any person or 
vessel from the requirements of this part for the conduct of exempted 
fishing beneficial to the management of the American lobster, weakfish, 
Atlantic red drum, Atlantic striped bass, Atlantic sturgeon, or 
horseshoe crab resource or fishery, pursuant to the provisions of Sec.  
600.745 of this chapter.
    (a) * * *
    (1) Have a detrimental effect on the American lobster, weakfish, 
Atlantic red drum, Atlantic striped bass, Atlantic sturgeon, or 
horseshoe crab resource or fishery; or
* * * * *
[FR Doc. E8-23586 Filed 10-3-08; 8:45 am]
BILLING CODE 3510-22-S